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G.S. PAPER II – CONSTITUTION & POLITY
SEPARATION OF POWERS BETWEEN VARIOUS ORGANS DISPUTE
REDRESSAL MECHANISMS AND INSTITUTIONS
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INTRODUCTION ............................................................................................................................................................. 3
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ORIGIN .............................................................................................................................................................................. 3
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DEFINITIONS................................................................................................................................................................... 3
3.1 TRADITIONAL (CLASSICAL) APPROACH ................................................................................................................................... 4
3.1.1
Montesquieu’s strict doctrine (tripartite system) .....................................................................................................4
3.1.2
Summary of doctrine ..............................................................................................................................................................4
3.2 MODERN (CONTEMPORARY) APPROACH ................................................................................................................................. 5
3.3 MARXIST-LENINIST APPROACH ................................................................................................................................................. 5
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DOCTRINE OF SEPARATION OF POWERS IN INDIA ........................................................................................... 5
4.1 CONSTITUTIONAL POSITION....................................................................................................................................................... 6
4.1.1
Separation of powers ..............................................................................................................................................................6
4.1.2
Functional Overlap ..................................................................................................................................................................6
4.2 JUDICIAL PRONOUNCEMENTS ON THE DOCTRINE IN INDIA .................................................................................................. 7
4.2.1
re Delhi Laws Act case............................................................................................................................................................7
4.2.2
KesavanandaBharti case ......................................................................................................................................................8
4.2.3
Indira Nehru Gandhi v. Raj Narain ..................................................................................................................................8
4.2.4
Other cases...................................................................................................................................................................................8
4.3 CHECKS AND BALANCES .............................................................................................................................................................. 8
4.4 JUDICIAL REVIEW......................................................................................................................................................................... 9
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SEPARATION OF POWER IN OTHER COUNTRIES ............................................................................................ 10
5.1 SEPARATION OF POWER IN USA ............................................................................................................................................ 10
5.2 SEPARATION OF POWER IN ENGLAND................................................................................................................................... 10
5.3 SOME OTHER COUNTRIES ........................................................................................................................................................ 11
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CONCLUSION ................................................................................................................................................................ 11
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INTRODUCTION
“Power corrupts and absolute Power tends to corrupt absolutely”
We know that it the government’s role to protect individual rights, but governments have historically been the major
violators of these rights. Thus, a number of measures have been derived to reduce this likelihood. The concept of
Separation of Powers is one such concept. The basic assumption behind this is that when a single person or group has
a large amount of power, they can become dangerous to citizens. The Separation of power is a way of removing the
amount of power in any group’s hands, making it more difficult to abuse.
The doctrine of separation of power claims that state power is not a single entity but rather a composite of different
governmental functions (i.e. legislative, executive, and judicial) carried out by state bodies independently of each
other. The legislature enacts laws; the executive enforces laws; and the judiciary interprets laws.
This idea of separation of functions stems from the logical conclusion that if the law-makers should also be the
administrators and dispensers of law and justice, then the people at large will be left without a remedy in case any
injustice is done as there will be no superior authority.
The value of this doctrine lies in that it attempts to preserve human liberty by avoiding the concentration of powers in
any one person or body of person. As stated by Madison- “The accumulation of all powers, legislative, executive and
judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may
justly be pronounced the very definition of tyranny.” And for the prevention of this tyranny, the doctrine of separation
of power holds its greatest importance.
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ORIGIN
The theory of separation of powers may be traced back in the writings of classical and medieval thinkers such
as Aristotle (384–322 BC). For instance, Aristotle in his book (“The Politics”) proclaimed that:
There are three elements in each constitution in respect of which every serious lawgiver must look for what is
advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in
constitutions are bound to correspond to the differences between each of these elements. The three are, first, the
deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.
Further, Aristotle believed that any single form of government was unstable leading to a permanent cycle of disasters.
In the same vein, Cicero preferred powers to be vested in the people and authority in the state. Apart
from Aristotle and Cicero, other thinkers who rebelled against concentrating powers in one absolute leader were John
Locke and Jean Bodin. For instance, Locke stressed that the executive and legislative powers should be separate for the
sake of liberty. As liberty is likely to suffer when the same human being makes the law and execute them.
Such thinking during the Age of Enlightenment (reasons) in Europe were refined and reformulated as a doctrine in the
mid-18th Century by the celebrated French philosopher, Charles de Secondat, Baron de Montesquieu (1689-1755)
in his book, “De l’Esprit des Lois” (i.e. the Spirit of Laws), 1748.
Between 16-18th Centuries, the doctrine of separation of powers occupied an upper hand in the struggle of the
bourgeoisie against absolutism and the arbitrary rule of kings (i.e. feudal monarchy). Again, the doctrine was used in a
number of countries to justify a compromise between the bourgeoisie, which had won control over the legislature and
judiciary, and the feudal-monarchical circles that had retained executive power. With the establishment of the
capitalist system the principle of separation of powers was proclaimed as one of the fundamental principles of
bourgeois constitutionalism.
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DEFINITIONS
The phrase ‘separation of powers’ is ‘one of the most confusing in the vocabulary of political and constitutional
thought’. According to Geoffrey Marshall (1971:97), the phrase has been used ‘with varying implication’ by
historians and political scientists, this is because the concept manifests itself in so many ways. In understanding the
concept of ‘separation of powers’ one has to take on board the three approaches i.e. traditional (classical), modern
(contemporary) and Marxist-Leninist approaches.
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3.1 TRADITIONAL (CLASSICAL) APPROACH
The traditional views are presented by Montesquieu who vigorously advocated for a “strict or pure or total or
complete or absolute” separation of powers and personnel between three organs of the state i.e. the Executive,
Legislature and Judiciary.Power being diffused between three separate bodies exercising separate functions with no
overlaps in function or personnel.
3.1.1 MONTESQUIEU’S STRICT DOCTRINE (TRIPARTITE SYSTEM)
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In every government there are three sorts of power i.e. legislature, executive and judiciary. The executive, makes
peace or war, send or receives embassies, establishes the public security and provides against invasions.
The legislature, prince and magistrate enact temporary or perpetual laws and amend or abrogate those that
have been already enacted. The judiciary, punishes criminals, or determines the disputes that arise between
individuals.
Montesquieu warned his countrymen about the danger of vesting all state powers in one person or body of
people as follows;
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there
can be no liberty……….Again, there is no liberty if the power of judging is not separated from the legislative and
executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave
with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of
the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs,
and that of trying crimes or individual causes.
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That concentrated power is dangerous and leads to despotism of government (tyranny);
Legislature should not appoint members of the Executive [i.e. Parliament should not elect the President or the
Prime Minister]; and for the same reason the Executive should not have a role in electing members of the
Legislature. Neither the Executive nor the Legislature should appoint members of the Judiciary, for if they do
the Judiciary will lose its independence. Again, judges should not appoint members of the Executive.
That it is the people who should elect members of executive, legislature and judicial officers.
State officials should not form part of or belong to two or more organs.
He argued, if separate powers of government are placed in different hands, no individual or group of people
can monopolize political powers (i.e. differentiation of functions). Thus, he was against absolute power
residing in one person or body exercising executive, legislative and judicial powers.
To him, the state will perish when the legislature power become more corrupted than the executive.
He based this model on the Constitution of the Roman Republic and the British constitutional
system. Montesquieu took the view that the Roman Republic had powers separated so that no one could
usurp complete power.
He (mistakenly) believed that the English constitution establishes functional separation between the
legislature, executive and judicial powers. In England, the monarch exercises executive powers, legislative
power are shared by hereditary nobility and the peoples’ elected representatives, judging powers vested in
persons drawn from the body of the people.
3.1.2 SUMMARY OF DOCTRINE
The Doctrine of Separation of powers includes the following distinct but overlapping aspects;
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Institutional separation of powers: (a tripartite separation of powers) – the need to have three major
institutions or organs in a state i.e. Legislature, Executive and Judiciary.
Functional separation of powers: state power/functions must be vested and exercised by three separate
institutions or organs i.e. law making, enforcement and interpretation.
Separation of personnel: (each organ with own personnel) – no person should be a member of more than one
organ.
Limitation of appointing powers: state organs should not appoint or elect members for each other.
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3.2 MODERN (CONTEMPORARY) APPROACH
The doctrine of separation of powers has become an integral part of the governmental structure. But, the practical
application of the doctrine differs to a great extent. In theory, the doctrine of separation of powers is supposed to have
a threefold classification of functions and corresponding organs. But because of the diverse and complex nature of a
modern state, where the process of law making, administration and adjudication cannot be clearly demarcated or
assigned to separate institutions, the application of this doctrine in strict sense is very difficult.
This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of separation of powers.
Essentially, this approach point out practical difficulties in the application of Montesquieu’s strict doctrine and thus
advocates for a ‘mixed government’ or ‘weak separation of powers’ with ‘checks and balances’ to prevent abuses.
Therefore, this concept insists that the primary functions of the state should be allocated clearly and that there should
be checks to ensure that no institution encroaches significantly upon the function of the other.
To them, Montesquieu’s strict doctrine presents the following problems:•
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A complete separation of the three organs may lead to constitutional deadlock (disunity of powers). Thus, a
complete separation of powers is neither possible nor desirable.
Partial separation of powers is required to achieve a mixed and balanced constitutional structure.
It would be impractical to expect each branch of government to raise its own finances.
The theory is based on the assumption that all the three organs of the government are equality important, but in
reality it is not so. In most cases, the executive is more powerful of the three branches of government.
3.3 MARXIST-LENINIST APPROACH
Unlike, the other two approaches, the Marxist-Leninist approachrefute the application of the doctrine by arguing that
the theory of the separation of powers is “nothing but the profane industrial division of labour applied for purposes of
simplification and control to the mechanism of the state”. In essence, Marxist-Leninist theory rejects the theory of the
separation of powers because it ignores the class nature of society. The existence in a socialist state of state bodies
with different jurisdiction means that a certain division of functions in exercising state power is essential while
maintaining the unity of state power.
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DOCTRINE OF SEPARATION OF POWERS IN INDIA
Indian state represents a contemporary approach in constitutionalising the doctrine of separation of powers.
Essentially, there is no strict separation of powers under constitution, both in principle and practice.
In India, there are three distinct activities in the Government through which the will of the people are expressed. The
legislative organ of the state makes laws, the executive forces them and the judiciary applies them to the specific cases
arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working
of another functionary because a strict demarcation of functions is not possible in their dealings with the general
public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these
organs. The question which is important here is that what should be the relation among these three organs of the
state, i.e. whether there should be complete separation of powers or there should be co-ordination among them.
In the words of Dr. Durgas Das Basu,
“So far as the courts are concerned, the application of the doctrine (the theory of separation of powers) may involve
two propositions: namely,
a) that none of the three organs of Government, Legislative Executive and Judicial, can exercise any power which
properly belongs to either of the other two;
b) that the legislature cannot delegate its powers.” 5
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What is significant is the word “properly” and therefore conceives of a broad division of powers where the core
function is one which is exclusively conferred on that particular organ of State, though there may be some overlap in
regard to the fringe areas of the topics so entrusted. The pronouncement on this aspect of law by the courts is that
under the Indian Constitution there is a broad separation of powers.
4.1 CONSTITUTIONAL POSITION
4.1.1 SEPARATION OF POWERS
The Constitution of India embraces the idea of separation of powers in an implied manner. Despite there being no
express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make
the provisions for a reasonable separation of functions and powers between the three organs of Government.
By looking into the various provisions of the Constitution, it is evident that the Constitution intends that the powers of
legislation shall be exercised exclusively by the legislature. Similarly, the judicial powers can be said to vest with the
judiciary. The judiciary is independent in its field and there can be no interference with its judicial functions either by
the Executive or by the Legislature. Also, the executive powers of the Union and the State are vested in the President
and the Governor respectively.
The constitution of India lays down a functional separation of the organs of the State in the following manner:
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Article 50 lays down that State shall take steps to separate the judiciary from the executive. This is for the
purpose of ensuring the independence of judiciary.
Article 122 and 212 provides validity of proceedings in Parliament and the Legislatures cannot be called
into question in any Court. This ensures the separation and immunity of the legislatures from judicial
intervention on the allegation of procedural irregularity.
Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the
Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.
Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be
vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
Article 361 declared that the President or the Governor shall not be answerable to any court for the
exercise and performance of the powers and duties of his office.
4.1.2 FUNCTIONAL OVERLAP
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The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its
privilege, impeachment of the President and the removal of the judges.
The executive may further affect the functioning of the judiciary by making appointments to the office of
Chief Justice and other judges.
Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and
revalidating it..
While discharging the function of disqualifying its members and impeachment of the judges, the
legislature discharges the functions of the judiciary.
Legislature can impose punishment for exceeding freedom of speech in the Parliament; this comes under
the powers and privileges of the parliament. But while exercising such power it is always necessary that it
should be in conformity with due process.
The heads of each governmental ministry is a member of the legislature, thus making the executive an
integral part of the legislature.
The council of ministers on whose advice the President and the Governor acts are elected members of the
legislature.
Legislative power that is being vested with the legislature in certain circumstances can be exercised by
the executive. If the President or the Governor, when the legislature or is not in session and is satisfied
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that circumstances exist that necessitate immediate action may promulgate ordinance which has the
same force of the Act made by the Parliament or the State legislature.
The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the
States respectively, the authority to make rules for regulating their respective procedure and conduct of
business subject to the provisions of this Constitution. The executive also exercises law making power
under delegated legislation.
The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial
functions. Administrative tribunals which are a part of the executive also discharge judicial functions.
Higher administrative tribunals should always have a member of the judiciary. The higher judiciary is
conferred with the power of supervising the functioning of subordinate courts. It also acts as a legislature
while making laws regulating its conduct and rules regarding disposal of cases.
Besides the functional overlapping, the Indian system also lacks the separation of personnel amongst the three
departments.
Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is created where none of
the organs can usurp the functions or powers which are assigned to another organ by express or necessary provision,
neither can they divest themselves of essential functions which belong to them as under the Constitution.
Further, the Constitution of India expressly provides for a system of checks and balances in order to prevent the
arbitrary or capricious use of power derived from the said supreme document. Though such a system appears dilatory
of the doctrine of separation of powers, it is essential in order to enable the just and equitable functioning of such a
constitutional system. By giving such powers, a mechanism for the control over the exercise of constitutional powers
by the respective organs is established.
This clearly indicates that the Indian Constitution in its plan does not provide for a strict separation of powers.
Instead, it creates a system consisting of the three organs of Government and confers upon them both exclusive and
overlapping powers and functions. Thus, there is no absolute separation of functions between the three organs of
Government.
4.2 JUDICIAL PRONOUNCEMENTS ON THE DOCTRINE IN INDIA
The debate about the doctrine of separation of powers, and exactly what it involves in regard to Indian governance, is
as old as the Constitution itself. Apart from the directive principles laid down in Part-IV of the constitution which
provides for separation of judiciary from the executive, the constitutional scheme does not provide any formalistic
division of powers. It appeared in various judgments handed down by the Supreme Court after the Constitution was
adopted. It is through these judicial pronouncements, passed from time to time, that the boundaries of applicability of
the doctrine have been determined.
4.2.1 RE DELHI LAWS ACT CASE
In the re Delhi Laws Act case, it was for the first time observed by the Supreme Court that except where the
constitution has vested power in a body, the principle that one organ should not perform functions which essentially
belong to others is followed in India. By a majority of 5:2, the Court held that the theory of separation of powers
though not part and parcel of our Constitution, in exceptional circumstances is evident in the provisions of the
Constitution itself.As observed by Kania, C.J.:
“Although in the constitution of India there is no express separation of powers, it is clear that a legislature is created by
the constitution and detailed provisions are made for making that legislature pass laws. Does it not imply that unless it
can be gathered from other provisions of the constitution, other bodies-executive or judicial-are not intended to discharge
legislative functions?”
In essence, this judgment implied that all the three organs of the State, i.e., the Legislature, the Judiciary, and the
Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers,
jurisdictions, responsibilities and relationship with one another. Also, that it can be assumed that none of the organs of
the State, including the judiciary, would exceed its powers as laid down in the Constitution.
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4.2.2 KESAVANANDABHARTI CASE
In practice, from time to time, disputes continued to arise as to whether one organ of the State had exceeded the
boundaries assigned to it under the Constitution. This question of what amounts to an excess, was the basis for action
in the landmark KesavanandaBharti case of 1973. The question placed before the Supreme Court in this case was in
regard to the extent of the power of the legislature to amend the Constitution as provided for under the Constitution
itself. It was argued that Parliament was “supreme” and represented the sovereign will of the people. As such, if the
people’s representatives in Parliament decided to change a particular law to curb individual freedom or limit the
scope of judicial scrutiny, the judiciary had no right to question whether it was constitutional or not. However, the
Court did not allow this argument and instead found in favour of the appellant on the grounds that the doctrine of
separation of powers was a part of the “basic structure” of our Constitution.
Thus, the doctrine of “separation of powers” is acknowledged as an integral part of the basic features of our
Constitution. It is also agreed that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive
are bound by and subject to the provisions of the Constitution, which demarcates their respective powers,
jurisdictions, responsibilities and relationship with one another. It is assumed that none of the organs of the State,
including the judiciary, would exceed its powers as laid down in the Constitution. It is also expected that in the overall
interest of the country, even though their jurisdictions are separated and demarcated, all the institutions would work
in harmony and co-operation to maximize the public good.
As per this ruling, there was no longer any need for ambiguity as the doctrine was expressly recognized as a part of the
Indian Constitution, unalterable even by an Act of Parliament. Thus, the doctrine of separation of powers has been
incorporated, in its essence, into the Indian laws.
4.2.3 INDIRA NEHRU GANDHI V. RAJ NARAIN
However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain that the place of this doctrine in the
Indian context was made clearer. It was observed: “That in the Indian Constitution, there is separation of powers in a
broad sense only. A rigid separation of powers as under the American Constitution or under the Australian
Constitution does not apply to India.”Chandrachud J. also observed that the political usefulness of the doctrine of
Separation of Power is not widely recognized. No Constitution can survive without a conscious adherence to its fine
check and balance.
4.2.4 OTHER CASES
The doctrine of separation of powers was further expressly recognized to be a part of the Constitution in the case of
Ram JawayaKapur v. State of Punjab, where the Court held that though the doctrine of separation of powers is not
expressly mentioned in the Constitution it stands to be violated when the functions of one organ of Government are
performed by another. This means the Indian constitution had not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of different parts or branches of the Govt. have been sufficiently
differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one
organ or part of the state, of functions that essentially belongs to another.
In I.C. GolakNath v. State of Punjab, Supreme Court took the help of doctrine of basic structure as propounded in
KesvanandaBharati case and said that Ninth Schedule is violative of this doctrine and hence the Ninth Schedule was
made amenable to judicial review which also forms part of the basic structure theory. It was observed: “The
Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union
Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It
demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping
their limits. They should function within the spheres allotted to them.”
4.3 CHECKS AND BALANCES
The concept of constitutional checks arose as an outgrowth of the classical theory of separation of powers. The
purpose of this, and of the later development of checks and balances, was to ensure that governmental power would
not be used in an abusive manner. To prevent one branch from becoming supreme, protect the "opulent minority"
from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers
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need a way to balance each of the branches. Typically this was accomplished through a system of "checks and
balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Under the
system of checks and balances, one department is given certain powers by which it may definitely restrain the others
from exceeding constitutional authority. It may object or resist any encroachment upon its authority, or it may
question, if necessary any act or acts which unlawfully interferes with its sphere of jurisdiction and authority.
The Indian Constitution provides for a scheme of checks and balances between the three organs of government
namely, the legislature, the executive and the judiciary, against any potential abuse of power. For example,
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The judges of the Supreme Court and the High Courts in the States are appointed by the executive i.e. the
President acting on the advice of the Prime Minister and the Chief Justice of the Supreme Court. But they may
be removed from office only if they are impeached by Parliament. This measure helps the judiciary to function
without any fear of the executive.
Similarly, the executive is responsible to Parliament in its day to day functioning. While the President
appoints the leader of the majority party or a person who he believes commands a majority in the LokSabha
(House of the People or the Lower House) a government is duty bound to lay down power if the House adopts
a motion expressing no confidence in the government.
Similary the judiciary keeps a check on the laws made by Parliament and actions taken by Executives,
whether they conform to the constitution or not, using the tool of Judicial Review.
4.4 JUDICIAL REVIEW
There is, however, one facet in any democratic constitution which cannot be wished away, and that is, the necessity to
have a machinery by which an authority is brought into existence to decide on the interpretation of constitutional
provisions, or as to what the Constitution says and means and to resolve disputes, with finality, between the Central
Government and the States, or between the three organs of the State inter se. In every such democratic Constitution it
is the apex court of the country, which is conferred such jurisdiction and powers.
Article 144 of the Constitution declares that all authorities, civil and judicial, shall come to the aid of the Supreme
Court. Article 141 is to the effect that the law declared by the Supreme Court is binding on all courts within the
territory of India. Articles 129 and 142(2) expressly confer the power of contempt on the Supreme Court of India and
Article 215 correspondingly confers such power on the High Courts of the country. This, history has shown, is the most
potent weapon in the hands of the superior courts to compel obedience to its will.
It is only the fear of being sent to jail, which makes the clients and lawyers to be disciplined and respectful to the
judges and to faithfully carry out their judgments and orders. It is therefore clear that the founding fathers did not
allow the Indian Supreme Court to go the way of the US Supreme Court where a belligerent President could turn
around and say, “the judge has made his decision, let him now enforce it.”
Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.
However the only check on judicial power is the self-imposed discipline of judicial restraint. Therefore this doctrine
cannot be liberally applied to any modern government, because neither the powers can be kept in water tight
compartments nor can any government can run on strict separation of powers.
In Suman Gupta v. State of Jammu and Kashmir,the respective State Government reserved certain seats in medical
colleges for the students residing in the particular state on reciprocal basis, this policy of state was challenged on the
ground that it discriminate among the students on the ground of place of birth. The Supreme Court rejected the policy
on the ground of discrimination but meanwhile the students who are the beneficiaries of this policy had completed
their substantial education, and now it is not in the interests of justice to cancelled their admission, therefore here
supreme court applied the doctrine of prospective overruling and held that the government must not apply the
impugned policy from next academic year.
Therefore, by using the doctrine of prospective overruling in the above to cases, the Supreme Court maintained the
balance between judiciary and other organs of the government. It can also be maintained by using the self restraint by
the judges.
In Divisional Manager, Aravali Golf club v. Chander Hass and Another, the Supreme Court warned the High court
for its over activism. The Supreme Court held that since there was no sectioned post of tractor driver against which
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the respondents could be regularized as tractor driver, the direction of the first appellate court and the single judge to
create the post of tractor driver and regularizing he services was completely beyond their jurisdiction. The court
cannot direct the creation of post. Creation and sanction of post is a prerogative of the executive or legislative
authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of
posts in any organization. The court further said that the creation of a post is an executive or legislative function and it
involves economic factors. Hence, the courts cannot take upon themselves the power of creation of post.
Similarly, in MadhuHolmagi v. Union of India, wherein one Advocate filed a public interest litigation challenging the
“Agreement 123” i.e. Indo-US nuclear treaty proposed to be entered by the Indian government, petitioner contended
that court must have to scrutinize the all documents relating to the agreement 123 and must have to prevent the
Indian government from entering in to the nuclear deal. In this court dismissed the petition and also imposed a cost of
Rs 5000 on the petitioner stating that it is an abuse of court proceeding. Because the question raised by the petitioner
is a question of policy decision, which is to be decided by the parliament and not by the judiciary.
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SEPARATION OF POWER IN OTHER COUNTRIES
5.1 SEPARATION OF POWER IN USA
The United States Constitution has a more rigid separation of powers than the Constitutions of other democracies. In
the United States Constitution, Article 1 Section I gives Congress only those "legislative powers herein granted" and
proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for
Congress. The vesting clause in Article II places no limits on the Executive branch, simply stating that, "The Executive
Power shall be vested in a President of the United States of America." The Supreme Court holds "The judicial Power"
according to Article III, and it established the implication of Judicial review in Marbury v. Madison.
Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of
Congress to alter the composition and jurisdiction of the federal courtsThe following are illustrations where there are
checks and balances:
a) the lawmaking power of the Congress is checked by the President through its veto power, which in turn
maybe overturn by the legislature
b) the Congress may refuse to give its concurrence to an amnesty proclaimed by the President and the
Senate to a treaty he has concluded
c) the President may nullify a conviction in a criminal case by pardoning the offender
d) the Congress may limit the jurisdiction of the Supreme Court and that of inferior courts and even abolish
the latter tribunals
e) the Judiciary in general has the power to declare invalid an act done by the Congress, the President and
his subordinates, or the Constitutional Commissions.
5.2 SEPARATION OF POWER IN ENGLAND
Although the doctrine of separation of power plays a role in the United Kingdom's constitutional doctrine, the UK
constitution is often described as having "a weak separation of powers". For example, in the United Kingdom, the
executive forms a subset of the legislature, as did—to a lesser extent—the judiciary until the establishment of the
Supreme Court of the United Kingdom. The Prime Minister, the Chief Executive, sits as a member of the Parliament of
the United Kingdom, either as a peer in the House of Lords or as an elected member of the House of Commons (by
convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of
Commons) and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in the
United Kingdom are undoubtedly amongst the most independent in the world, the Law Lords, who were the final
arbiters of judicial disputes in the UK sat simultaneously in the House of Lords, the upper house of the legislature,
although this arrangement ceased in 2009 when the Supreme Court of the United Kingdom came into existence.
Until 2005, the Lord Chancellor fused the Legislature, Executive and Judiciary, as he was the ex officio Speaker of the
House of Lords, a Government Minister who sat in Cabinet and was head of the Lord Chancellor's Department which
administered the courts, the justice system and appointed judges, and was the head of the Judiciary in England and
Wales and sat as a judge on the Judicial Committee of the House of Lords, the highest domestic court in the entire
United Kingdom, and the Judicial Committee of the Privy Council, the senior tribunal court for parts of the
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Commonwealth. The Lord Chancellor also had certain other judicial positions, including being a judge in the Court of
Appeal and President of the Chancery Division. The Lord Chancellor combines other aspects of the constitution,
including having certain ecclesiastical functions of the established state church, making certain church appointments,
nominations and sitting as one of the thirty-three Church Commissioners. These functions remain intact and
unaffected by the Constitutional Reform Act.
In 2005, the Constitutional Reform Act separated the powers with Legislative functions going to an elected Lord
Speaker and the Judicial functions going to the Lord Chief Justice. The Lord Chancellor's Department was replaced
with a Ministry of Justice and the Lord Chancellor currently serves in the position of Secretary of State for Justice.
5.3 SOME OTHER COUNTRIES
The Commonwealth of Australia Constitution Act, 1900 clearly demarcates the boundaries of the three organs and
therefore provides for a very rigid separation of powers. Similarly, the French Constitution also provides for
separation of powers and divides the national government into the executive, legislative and judicial branch.
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CONCLUSION
The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not
accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of
Separation of Power is that there should be government of law rather than having will and whims of the official. Also
another most important feature of the said doctrine is that there should be independence of judiciary i.e. it should be
free from the other organs of the State and if it is so then justice would be delivered properly. The judiciary is the scale
through which one can measure the actual development of the State. If the judiciary is not independent, then it is the
first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there
is a very high chance of misuse of power. Hence the Doctrine of Separation of Power does play a vital role in the
creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of
judiciary.
The doctrine of separation of powers has come a long way from its theoretical inception. Today, the doctrine in its
absolute form is only recognized in letter as it is entirely unfeasible and impractical for usage in the operational
practices of a government. With the passage of time, States have evolved from being minimal and non-interventionist
to being welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to the people.
In its omnipresent role, the functions of the State have become diverse and its problems interdependent hence, any
serious attempt to define and separate the functions would only cause inefficiency in the government.
The modern day interpretation of the doctrine does not recognize the division of Government into three water-tight
compartments but instead provides for crossing rights and duties in order to establish a system of checks and
balances. The mere separation of powers between the three organs is not sufficient for the elimination of the dangers
of arbitrary and capricious government. Even after the distinguishing the functions, if an authority wielding public
power, is provided an absolute and sole discretion within the body in the matters regarding its sphere of influence,
there will be a resultant abuse of such power. Therefore, a system of checks and balances is a practical necessity in
order to achieve the desired ends of the doctrine of separation of powers. Such a system is not dilatory to the doctrine
but necessary in order to strengthen its actual usage.
In conclusion, it is evident that governments in their actual operation do not opt for the strict separation of powers
because it is undesirable and impracticable, however, implications of this concept can be seen in almost all the
countries in its diluted form. The discrepancies between the plan and practice, if any, are based on these very grounds
that the ideal plan is impractical for everyday use. India relies heavily upon the doctrine in order to regulate, check
and control the exercise of power by the three organs of Government. Whether it is in theory or in practical usage, the
Doctrine of Separation of Powers is essential for the effective functioning of a democracy.
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